The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1887-06-01

Persons who may have Doubt as to
whether the Supreme Court in the Rush
case Rendered a Decision Contrary to
Law and against "the Provisions of the
Constitution
THE STATE OF SOUTH CAROLINA,
| COUNTY OF ABBEVILLE
In the Court of Common Pleas
George r; Sibley = Co, Plaintiffs, against
Sarah T.. Parks, Smith. Parks & Co., and
Francis Arnold, Defendants.
| This case was heard by me at the term Of
the Court held In February, 1887. on the plead
ings, evidence and argument Of counsel
The action has been brought to forecose
mortgage on 81 lot OF land executed by Mrs.
Sarah +. Parks, n married woman. to secure
Il note given TO plaintiffs by the defendants,
Smith, Parks & Co. and also for Judgment
against the defendants. Smith, Parks 4 Co..
for the amount of the note and interest.
The defendant Francis Arnold. who Is In
no way interested in the above matters sets
up In his answer n prior mortgage on the
said lot OF land, and asks that his rights under
his mortgage may be protected in any order
made In The cause.
members Of the firm of Smith, Parks & Co.,
In his answer pleads minority. If there Is
any evidence on this subject 1t has escaped
me, but there has been no such formal con.
sent as will slvenle jurisdiction ofthis branch
of the case. The affidavit furnished me as TO
the default of Thomas n. Parks and James
l.. Talbert bears date after the adjournment
OF the Court at A6beville: and have az, doubt 10,
default against them. All questions there
fore rs TO n judgment against the members OF
the firm Of Smith. Parks Il Co. nrc reserved
to be heard by the Court hereafter.
No demand is made against the defendant
Sarah f. Parks, except for the foreclosure Of
the mortgage and the payment out OF the
proceeds, II sufficient, OF the note and inter
resisted by Mrs. Parks rs to the mortgage
held by plaintiffs on two grounds:
1st. That the said mortgage was obtained
End. That Mrs. Parks was, at the time Of
it's execution, married woman.
| 1st. AS to dureSs:-
Thomas \. Parks. n member OF the firm Of
Smith, Parks & Co., was a Step-son to Mrs.
Parks. Plaintiffs had sent money 10 him or
to the firm of Smith, Parks n Co, with which
to purchase cotton 10 be shipped to plaintiffs.
At the time this mortgage was given, P. b.
Tobin, Il member Of the Iirm OF Geo. II. Sib-
| ley & Co.. plaintiffs. WAS pressing for IL settle
ment and smith, Parks 4 Co were not able
to ship the cotton or tn refund the money
sent To them. In some way 1t seems that
Thomas y. Parks was the member Of the
firm OF Smith, Parks & Co.. who was called
on TO make the settlement and account for
the money sent to theci. He admitted that
they had money which they had not invested
In cotton, and made several unsuccessful cf-
forts to borrow the money to repay TO plain
tiff the amount due. \ settlement was final
firm name to the note sued on in this case,
and the execution ny Mrs. Parks of the mort
gnge to secure 1t. The amount was then due
and PAYABLE, e. Gnt ~ the TIE note was gwen at 90
per annuni.
1t is now claimed by Mrs. Parks that she
executed this mortgage because OF threats
made to her by p i. Tobin, who acted for
plaintiffs, ihatif it was not executed her step.
son, Thomas y. Parks, would be sent to the
penItentiary for misappropriating TO his own
use or that of the firm OF Smith. Parks & Co..
the money Of the plaintiffs; that Il proSecu-
ton was threatened and that the mortgage
was given ito compound and settle said prose.
cution." and that plaintiffs In consideration
thereof "deSisted' ;, from prosecuting the said
defendant Mrs. Parks, TO make out this de-
fence by u clear preponderance Of evidence
and In this way remove the presumption arlS-
validity and suf1iciency Of the consideration,
and of the full and free consent Of the mort
gagor to the terms Of the instrument.
am satisfied from the evidence that Thos.
mitted II criminal offence and that he was la
BILE TO be sent to the penitentiary therefor.
whatever may, be the facts. In this view
consequence thereof and also in consequence
OF her fears that q criminal pr0Secu-
tion would be commenced against Thomas y.
Parks she was under more or less excitement,
and in distress when the mortgage was cXecu.
tel.
There Is Ii conflict OF testimony, as to some
facts l regard as very important. l hnve not
seen the witnesses, but IL careful examination
of the testimony has led mo to the conclusion
that before Tobin met Mrs. Parks at all she
had been informed of the difficulties In which
Thomas y. Parks had become involved and
that she had told him that she would give q
mortgage on her lot to raise money 10 save
him from trouble. The only direct testimony
us to whether any threats were made to her
personally as to criminal proceedings against
~ Il,I, zfF N.xl,
Parks herself. In this they contradict each
other. and 1t will not be proper without some
aid as to the character of the witnesses, which
have not, TO find In favor of the party
whose duty is to prove fact as Mrs. Parks
ought to do here Indeed 1 am inclined to
think that in the condition OF Mrs. Parks
mind at the time, she may have made the
mistake of attributing to Tobin statements
N. Parks says that she kne,O of the debt to
Sibley & Co., and had tod him The day before
(the execution OF The mortgage) that rather
than see me prosecuted il I could
had offered the mortgage to others. ] find
that no warrant of arrest had been issued and
Mrs. Parks had not been Informed TINT any
warrant Ind been issued. The extent to
which Tobin did go was 10 say that . serious
criminal offence had been committed-a state
or things of which Thomas n. Parks had
been Informed by his counsel, and OF which
Mrs. Parks was apprehensive, If not actually
informed by her step-son before the interview
between T0bln and herself, when the mort
gage was executed. do not find TINT there
was any promise by Tobln. who acted for
plaintiffs, not to prosecute Thomas n. Parks
If the mortgage was given. II there was any
criminal ofiensc committed, Of which there Is
no sufficient evidence before me, find moth.
Ing In the testimony by which 1t appears that
plaintiffs bound themselves not 10 prosecute
therefor
There Is conflict OF authority on the law
applicable to this case and nothing directly
to the point at issue In our own State reports.
Threats OF II criminal prosecution for en-
bczzement and of q civil action for money
charged TO have been fraudulently withheld,
not imputing purposeto make any unusual,
harsh, oppressive or illegal use or process Is
not duress." Lander rs. Obert, As Texas. $50.
held "that threats of q criminal prosecution
against the son unless the father would give n
bond were no defence to the bond"
In Smith rs. RO,cley, ~ Bdr6. 5O2 1t was held
that where the plaintiffs husband was charg-
ed with embezzlement and she at his request
and on tho agreement that there should be
no prosecution, conveyed her real estate to
the creditor, she cannot avoid the deed for
durcSS."
A different doctrine is laid down In Foley Us.
Greene "a II. l., GlS) 5l An. Rep. 4l9. and In
the cases on the authority of which that case
rests. In Foley VS.. Greene q son was charged
with defalcalion and his own mother fur
nished security for the amount by giving a
were held to be void. / find no case In which |
relief has been given beyond the cases where
the parties were either husband and wife or
parent and child.
In F0ley us. Greene, there were not only
threats of prosecution but an actual agreement
that IL the security was given "the whole mat |
ter OF defalcation would be kept quiet and no
criminal charge would be made against the |
SON." The testimony In this case does not
show any agreement mnde by Tobin express.
ed or implied not to prosecute Thomas n. |